On 21st June 2011 the Government issued its response to the legal aid consultation alongside the Legal Aid, Sentencing and Punishment of Offenders Bill. This is the first opportunity to properly debate the bill, which is subject to the accelerated procedure. Since the majority of publicity has focused on the sentencing reforms, the legal aid cuts have had little scrutiny in the chamber.

 

The Government received over 5,000 responses to the legal aid consultation paper. Over 90% of the responses disagreed with the Government’s proposals. The Government made only small amendments to their original proposals. The changes will effectively halve the current system. They will hurt the most vulnerable, undermine the rule of law and represent a false economy, which will produce increased government spending in the long-run.

 

The Bill is available here and the consultation response can be accessed here. The key changes are that legal aid will no longer be available for:

1.     Clinical negligence claims;

2.     Criminal Injuries Compensation Authority cases. Help is currently usually provided to appeal against refusals of compensation for victims of crime;

3.     Debt (except to help at the late stage where the individual is facing eviction and when it can often be too late to resolve the underlying debt problem);

4.     Employment disputes (except discrimination cases);

5.     Education cases (except Special Educational Needs cases);

6.     Housing matters (except where a person is homeless or threatened with homelessness).  However, legal aid will not be available to address the underlying causes of the threat of eviction such as welfare benefits issues; Nor will it be available for a range of serious housing problems including advice on whether an individual has the correct priority for the allocation of social housing; help to remedy poor housing conditions which fall short of causing “serious risk” to the tenant; assistance to stop harassment by a landlord or neighbor;

7.     Immigration cases (except for those in immigration detention or cases involving torture or claims under the Refugee Convention). Family reunion, deportation appeals and refusals of leave to remain applications are excluded;

8.     Family matters (unless there is “objective evidence” of domestic violence). This includes divorce and disputes over contact with children;

9.     Welfare benefits matters including where there is an immediate risk of homelessness or eviction from the individual’s home;

10. Cases that have a “wider public interest”;

 

In addition:

11. Legal aid will no longer be automatically available for advice in the police station;

12. The financial eligibility criteria will be tightened so that those on lower incomes have to pay more toward their costs and those on benefits no longer receive legal aid automatically.

13. A mandatory telephone advice system will be introduced. Initially, any person who needs advice on debt (to the extent that it remains in scope), community care, discrimination or Special Educational Needs must make do with telephone advice.

 

We are extremely concerned that the cuts to legal aid will hurt the most vulnerable. The Government acknowledges that “legal aid recipients are amongst the most disadvantaged in society, reflecting both the nature of the problems they face as well as the eligibility rules for legal aid”, (Impact Assessment page 13 paragraph 39). Clearly, those who are struggling with benefit problems, houses that are falling into intolerable levels of disrepair, or those in large amounts of debt will frequently be among the poorest and most desperate. This was affirmed in the recent report of the Independent Commission of Inquiry into legal aid, organised with the assistance of YLAL. The Commission, who considered the evidence both for and against cutting legal aid, made clear that:

“Many of those who receive legal aid are among the most vulnerable in society. They include the elderly, the disabled, the abused, children and the mentally ill. They each have legal rights which they would not have been able to enforce without legal aid.” “Unequal before the law? The future of legal aid” page 56

 

It is these people who will bear the burden of the cuts. The Cumulative Equality Impact Assessment accompanying the consultation response states that “…overall the proposals have the potential to impact a greater proportion of women, BAME people and ill or disabled people” (page 24 paragraph 1.7). Similarly the Impact Assessment notes that in 2009-2010, 80% of legal aid recipients were in the poorest 20% of society (page 13 paragraph 41): by definition the cuts will therefore disproportionately affect the poorest. As noted by the Justice Select Committee “if this were to happen it would sit uneasily with the Government’s commitment to protect the most vulnerable in society” Government’s proposed reforms of legal aid, Justice Select Committee HC 681 March 2011, page 32 paragraph 69. YLAL wholeheartedly supports this sentiment and opposes the cuts to scope in particular, on this basis.

 

Our second key concern is that cuts to legal aid will undermine the rule of law by making it more difficult for individuals to enforce their legal rights. In the words of the Commission of Inquiry into legal aid, “there can be no semblance of equality before the law when those who cannot afford to pay a lawyer privately go unrepresented or receive a worse kind of representation than those who can” page 57.

 

Legal aid also plays a vital role in holding the state to account by correcting the mistakes made by Government Departments such as DWP and UKBA, or local authorities. In this context, the Justice Select Committee have noted the “significant volume of incorrect decision-making on behalf of those tasked by the Department for Work and Pensions (DWP) to make decisions about benefits” (page 26 paragraph 54). Stopping a person from accessing free legal advice in such a situation frequently means removing their only real chance of successfully challenging these decisions. People’s legal rights and their ability to enforce them are being eroded in the name of austerity.

 

Our third main concern is that the cuts represent a false economy. The Government itself has noted the potential for:

 

“increased resource costs for other Departments. If civil and family issues are not resolved effectively people might continue to rely upon the state, including because failure to resolve one issue may lead to another arising. This may include health, housing, education and other local authority services including services provided by the voluntary and community sector” Green Paper Cumulative Impact Assessment page 9 paragraph 27.

 

This issue was also recognised by the Commission of Inquiry into legal aid:

 

The extent of the false economy of legal aid cuts was clear from the individual testimony that we received which demonstrated the potential for unsolved legal problems to spiral out of control. For example, AB: “My benefits stopped because I was no longer entitled to receive them. This meant that I could not afford to pay my rent and around three years ago I was evicted… I had to sleep on the streets because I had nowhere else to go… I was attacked on quite a few occasions. I also became ill very quickly and eventually I ended up in hospital around a year later. I was diagnosed with a long-term illness that meant I had problems with my physical health. I was also suffering from severe depression.”“Unequal before the law? The future of legal aid” page 60

 

Citizens Advice have endeavoured to quantify the “knock-on” costs of removing legal aid estimating that for every £1 spent on housing advice, debt advice, employment advice and benefits advice the state saves between £2.34 and £8.80 (“Towards a business case for legal aid” Citizens Advice July 2010 page 2). In respect of this the Justice Select Committee has said:

“We are surprised that the Government is proposing to make such changes without assessing their likely impact on spending from the public purse and we call on them to do so before taking a final decision on implementation.” Government’s proposed reforms of legal aid, Justice Select Committee HC 681 March 2011

It will defeat the point of the cuts if they simply result in further costs later on.

Cuts to legal aid coincide with fundamental changes across other government departments, including but not limited to:

§ introduction of universal credit;

§ replacement of Disability Living Allowance with Personal Independence Payment;

§ Localism Bill changing the rules on secure tenancies for those in social housing;

§ green paper on employment disputes making it harder for workers to bring cases to the tribunal and increasing the tribunal’s power to “strike-out” cases;

§ DCLG review of all legal duties of local authorities with a view to reducing “burdens”.

 

Fundamental changes to the benefits system and to the rules of tenure are likely result in more mistakes being made by the State in the short term. Victims of these errors will no longer be able to access free legal advice to rectify the problem.